The decades immediately following the Norman Conquest of 1066 have been highlighted as the key period in which the conceptualisation and practice of the descent of land to heirs underwent considerable developments.1 The crux of the matter is deceptively simple: what was the precise path of the tenement upon the death of the tenant; i.e. did the heir enter into the tenement purely on the strength of abstract legal norms (inheritance) or by the authority of the lord (succession)?2 The analysis of aspects of inheritance language within charters has formed a crucial part of previous studies as a visible marker of the expression of the terms of tenure. In this study, I will survey many aspects of the charter for uses of ‘heir’ as well as other phrases signifying land tenure such as in feudo et hereditate and hereditario iure. I will examine the language of inheritance and heritability in the order in which it typically appeared within the charter, beginning with references to heirs within the dispositive clause. These are then followed by an examination of the holding clause which outlined the conditions under which the tenement was to be held. Finally, references
1
My purpose here is not to summarise the debate regarding inheritance but to instead make reference to specific points within these debates. For an overview, see Hudson, Land, Law and Lordship, Chapters 3-4. In addition, see the numerous articles contained within J. C. Holt, Colonial England, 1066-1215, (London, 1997); S.E. Thorne, ‘English Feudalism and Estates in Land’, pp.193-209; S.F.C. Milson, The
Legal Framework of English Feudalism, (Cambridge,1976), in particular, Chs.2 and 5; Hudson, ‘Anglo-
Norman Land Law and the Origins of Property’ in G. Garnett and Hudson (eds.), Law and Government in
Medieval England and Normandy: Essays in Honour of Sir James Holt, (Cambridge, 1994), pp.198-222,
and ‘Life-Grants of Land and the Development of Inheritance in Anglo-Norman England’, pp.67-80; S. Reynolds, Fiefs and Vassals and S. D. White, ‘Succession to Fiefs in Early Medieval England’, P&P No. 65, (Nov., 1974), pp.118-127. For treatments of inheritance that focus more directly upon Scotland, see H. MacQueen, Common Law and Feudal Society; ‘Dissasine and Mortancestor in Scots Law’, JLegH, 4:3 (1984), pp.21-49 and ‘The Brieve of Right in Scots Law’, JLegH, 3:1 (1982), pp.52-70; ‘Tears of a Legal Historian: Scottish Feudalism and the ius commune’, JR, pp.1-28. Duncan, Scotland: the Making of the
Kingdom, in particular, Chs. 12, 15-6; ‘The Earliest Scottish Charters’, SHR 37 (1958), pp.103-35; Barrow,
The Kingdom of the Scots, Chs. 12-4; and, most recently, Hudson, ‘Scottish Charter Diplomatic’, pp.153-
78.
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to heirs within the pro anima clause are considered as a means of tracing developments in the perceptions of the family group. Not only will this chapter demonstrate shifts in the use of the language of heirs as a reflection of legal reform, but it will highlight variations in the implementation of these linguistic markers across the region of study, in particular its peculiar absence in southern Scotland.
Modern terminology affects the study of the descent of lands as it ‘risks focusing on definitions too specific to one later system of law, and neglecting the terms of thought during the period’.3 Hudson’s suggested definition of ‘inheritance’ from Milsom is useful: ‘When the ancestor dies, the heir is at once entitled under abstract rules of law and enters without anyone’s authority’.4 Though failing to define inheritance, Thorne argued that the presence of words such as heres alongside the passage of land from father to son should be termed ‘succession’ and illustrated this with his famous analogy of the gardeners:
If I hire my gardener’s son after his father’s death, and my son hires his son after him, the place as gardener has descended through three generations of the same family. Yet it is obvious that it has come to each by gift, and that the son and grandson of my gardener can in no way be said to have inherited it. What we have is a fief held by successive tenants in return for service, each succeeding by gift.5
Despite reservations, and in the absence of alternative terminology, succession is the best current definition.
The second problem is evidential. The tenure language of the charter is not particularly forthcoming; moreover, the volume of data is small before c.1150 in England and the last quarter of the twelfth century in Scotland. A pair of particularly apt and famous Scottish examples illustrates the principal developments in the charter
3
See Hudson, Land, Law and Lordship, p.68 and pp.67-72 for a succinct summary of the key criticisms of the Milsomian model.
4
Milsom, Legal Framework, p.154.
5
Thorne, ‘English Feudalism and Estates in Land’, CLJ (1959), p.196. See Hudson, Land, Law and
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phraseology of dependent heritable tenure.6 The first document is the grant of Annandale by David I to Robert de Brus in 1124, famous not only as one of the first charters of his reign and a very early surviving Scottish charter of enfeoffment, but also illustrative of his restructuring of the border region.7 The second document is a grant (or restoration)8 of 1165x1170 by William the Lion to Brus’ son, Robert, of the same lands forfeited by his father as a result of his participation in the Battle of the Standard of 1138 in the army of the English king.9 As MacQueen notes, the second document demonstrates ‘significant developments in the explicitness of and in the concepts underlying the language of the document’.10 There are clear linguistic differences particularly in the dispositive and holding clauses of these documents. While the second document was granted to the recipient ‘and his heirs’ to hold ‘by him and his heirs of me and my heirs in fee and heritage’ (i.e. what was to become the standard habendum clause during the twelfth century),11 the first document not only omitted mention of the grantor and recipient’s heirs in both clauses but also stated only that the lands were to be held, somewhat vaguely, ‘well and honourably with all their customs’.12 So, within a period of no more than forty-six years, the composition
6
MacQueen, ‘Tears of a Legal Historian’, pp.7-8. See Appendix Nine for the full text of these charters. The appropriate sections of language are highlighted in bold.
7
G.W.S. Barrow (ed.), The Charters of King David I, (Woodbridge, 1999), no. 16. For a summary of the Anglo-Scottish Border region see: Barrow, The Kingdom of the Scots, Ch. 4 where he highlights the significance of Malcolm IV’s surrender of Carlisle, Cumberland and Westmorland in 1157 based upon the precedent of William Rufus’ expulsion of the Scots from Carlisle in 1092 for the standardisation of the West March along the line later formalised within the 1237 Treaty of York.
8 See below, pp.127-32, for a discussion of reddere and regrants. 9
G.W.S. Barrow & W.W. Scott (eds), Regesta Regum Scottorum II: The Acts of William I, (Edinburgh, 1982), no.80, p.178.
10
MacQueen, ‘Tears of a Legal Historian’, p.7.
11
Kaye, Conveyances, p.70.
12
This reference to the tenurial customs of Ranulf le Meschin is a peculiar choice given that he had surrendered the lands in question c.1120, around the time that he received the earldom of Chester from Henry I. See Holt, Colonial England, pp.154-5. As Ranulf was mentioned as being in possession during the 1124 charter, Blakely mentions the possibility that this document is an updated copy of an original made before 1120; see, The Brus Family, pp.23-6. Duncan notes that the intermediary grant to
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of the document had progressed from an implicit statement of customary tenure to a firm and unambiguous statement that the land was heritable ‘on both sides of the bargain’;13 tenure was dependent upon the successful maintenance of the lord-tenant relationship through, in part, the successful performance of services. Of the 1124 charter, Duncan stated that despite the absence of the precise markers that would define heritable grants by judges in the later twelfth and early thirteenth centuries, ‘it is difficult to believe that Annandale was to be other than patrimony, for as such it was certainly treated’.14 Thus, the clarity of the contrast between the wordings of the two documents reflects developments in the sophistication of charter language. This, in turn, reflected changing conceptualisations of what was advantageous and became increasingly necessary to maintain possession of the land as legislation was enacted.15
At least initially, status compensated for the absence of legislation; the nobility
benefited from their status and proximity to the king through increased land security. Lewis perceived a difference between the structures of the nobility themselves in Anglo-Saxon England as distinct from in Normandy. He traced the origins of the former as earls under a modified form and name from the ealdormen of seventh-century Wessex ‘connected to the king at best by marriage’, whereas the Norman counts were ‘an innovation of the 1020s and 1030s’ and ‘blood relations of Duke William’.16 Thus, a significant proportion of the new aristocracy of post-conquest England was closely related to King William by blood or marriage and many others had fought with him at Hastings. However, separating out the influence of familial ties from emerging legal norms further complicates the scene; it is difficult to imagine a situation in which pragmatism and the strength of the personal connection did not play a significant part in the transfer of lands to the heir on the death of the ancestor. Indeed, owing to the
Robert ‘and his heir’ was ‘a refusal to countenance partition’, The Making of the Kingdom, p.370. See also Barrow & Scott, RRS II p.48; Kingdom of the Scots, p.126.
13
MacQueen, ‘Tears of a Legal Historian’, p.8.
14 Duncan, Making of Scotland, p.370. 15
See the analysis of the uses of ‘heirs’ in the dispositive and holding clauses of the charter, below, pp.133-45.
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strength of this personal connection, founded on proximity of kinship and reinforced by loyalty, the retention of lands by the same family and usually from father to son is not proof, in and of itself, that abstract inheritance law was present.17 While there is greater evidence for the nobility, as Hudson notes, a reference within an 1142 charter of William de Roumare, earl of Lincoln, that the separation of tenants into two groups which held either ‘in fee and inheritance’ or as ‘rustics’ suggests that men of any status could hold their lands heritably.18
Under the Common Law, the descent of English lands was afforded some certainties: that fief lands would descend through primogeniture – the succession of the eldest male son as heir – and with increasingly clear expectations of the ranking of other family members in the absence of male sons.19 Holt’s examination of the earliest enfeoffments after 1066 led him to posit that the new Norman nobility had ‘a securely embedded concept of what inheritance was’,20 and that ‘inheritance was the received legal doctrine of Norman England’.21 Certainly it has been easier to follow the
practices of the tenants-in-chief, who held by military service, as the trail of evidence is stronger. From a study of such sources, Hudson states that ‘the Normans came to England accustomed to the notion that sons succeeded to their fathers’ fiefs [...] As
17
Hudson’s methodological framework of principles, norms and rules is extremely useful here. See Hudson, Land, Law and Lordship, pp.9-10 and above, p.20.
18
Hudson, ‘Origins of Property’, p.208
19 For discussion of the ranking of heirs, see above, pp.58-60. See Glanville’s separation of heirs into
‘closest’ and ‘more distant’, above, pp.22.
20 J. C. Holt, ‘Politics and Property in Early Medieval England’, P&P, 57 (1972), pp.3-52, p.40. Maitland
commented that: ‘the followers of the Conqueror who received great gifts of English land held those lands heritably’, History of English Law,i pp.314-6. As Hudson notes, Maitland does also express some limitations upon this perspective. Hudson, Land, Law and Lordship, p. 65, n.2; Pollock and Maitland, The
History of English Law, ii pp.266-7, 309, 312.
21
Holt, ‘Politics and Property in Early Medieval England’, p.8. The main criticism of Holt’s arguments have come from Stephen White who demonstrated that his conceptualisation of Norman and Anglo- Norman concepts of inheritance were never outlined in detail nor did he attempt to define satisfactorily the legal theory behind the variety of some of the key inheritance vocabulary within Anglo-Norman texts; White, ‘Succession to Fiefs’, throughout.
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soon as relevant charters survive in any number, they record gifts made to the donee and his heirs to hold of the donor and his heirs...’.22 Like many other documents issued before the third quarter of the twelfth century, the intended nature of the first document ultimately was speculative,23 and where theories have been posited they cannot be proved absolutely. This absence of proof is a substantial obstacle to our understanding of early landholding practices. Of Scottish grants in feu, Duncan suggests that, in addition to patterns of survival:
such deeds were rarely drawn up, because the fief was only a part of the donor’s relationship with the donee, involving real services and a real control by the donor over the use and disposition of the fief...from c.1170 this dominant position broke down as vassals first sought permission to alienate and then, early in the thirteenth century, assumed the right to fragment as well.24
Moreover, the move towards written documentation indicates a changeover from oral practices that did not occur uniformly throughout the British Isles or indeed across all levels of landholding society.25
Yet even among the royalty of England and Scotland primogeniture, though rapidly gaining dominance, did not become the standard procedure in determining the passage of lands between generations until the second half of the twelfth century, though it had been raised by the supporters of William Clito, nephew of Henry I, in his competing claim to the throne. Duncan emphasises the significance of the powerful friends poised to support Earl David in his claim to the throne against alternative candidates; similarly, during the late eleventh century in England, Robert Curthose,
22
Hudson, Formation of the English Common Law, pp.97-8. For the analysis of grants given ‘to x and his heirs by y and his heirs’, see below, pp.133-46.
23
Note that this situation is applicable to both Scotland and England. See Hudson, ‘Scottish Charter Diplomatic’, p.137. ‘However, even when a break in succession can be shown, this need not indicate a general limitation of heritability; such a conclusion may rest upon unproveable assumptions about the nature of the first tenant’s tenure, the existence of heirs, and the absence of consensual tenurial rearrangements’.
24 Duncan, Making of Scotland, p.408. 25
Clanchy, From Memory to Written Record, throughout, in particular, Chs. 2, 5 and 7. Broun highlights the quicker adoption of brieves by newcomers in contrast to native landholders who were much slower to employ written records of their holdings.
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eldest son of William, was excluded from the throne first by William Rufus II and then by Henry I.26
Acquired/Inherited
As Holt notes, ‘property law was family law [...][the] distinction between inheritance and acquisition was one of several means whereby the family sought both to maintain the unity of its property and to make some provision for cadet branches’.27 The giving of seisin was a public event conducted in front of many witnesses from within the community; thus, we can assume that contemporaries possessed a decent knowledge of which portions of land belonged to whom.28 A small number of documents,
particularly confirmations which specify that the lands were inherited, often reflect the passage of lands through or to a female relative. Robert de Burneville’s
confirmation to Kelso Abbey in August 24, 1198xDecember 4, 1213, mentioned that the lands were inherited from his mother, Matilda.29 Ralph Buscel of Wykeham, son of Berlet, confirmed to the nuns of Wykeham in 1185x1211, lands within his court and park given by his mother Berlet and his brother Reginald from the eleven bovates of their inheritance.30 Clearly, the majority of examples were motivated by the
26 Aird acknowledges the considerable debate concerning the Conqueror’s intentions for the succession
to Normandy and England; however, the absence of well-established laws of succession in the eleventh- century meant that, among other things, the designated heir was more dependent upon the support of the nobility. W. M. Aird follows this line of evidence: Robert Curthose Duke of Normandy (c.1050-1134), (Woodbridge, 2008), pp.99-117.
27
Holt, Colonial England, p.128.
28 The large numbers of documents which publicly perambulated boundaries indicates that there were
limits to such knowledge and routine maintenance was the clearest way to offset disputes between neighbours. Moreover, boundary lines were often disputed or intruded upon by opportunistic landholders. As discussed previously, the counsel and participation by men, lords and friends were crucial to the physical and moral adherence to such boundaries. See above, p.91, for Robert de Muschamp’s request that his friends be his confidants and witnesses to his alms grants to Melrose.
29Kelso 323. ‘…antequam ego venire ad hereditatem meam…’. Similarly, Cecily de Rumilly, the
younger, in 1179x1190, restored to Geoffrey de Neville the service of Robert de Bulmer with his lands, given as the inheritance of Emma, daughter and heir of Bertram de Bulmer. EYC vii 31.
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challenges presented by female possession of lands, which often necessitated additional explanation within the documentary record as well as additional
confirmations and securities.31 One document was enacted by the grantor as soon as he entered into his inheritance.32 Explicit references to purchased lands were included to clarify the ability of the grantor to alienate them.33 References to purchased lands outnumber references to inherited lands, suggesting an expectation that granted lands were more often strongly connected to the family.
However, this binary categorisation of land origin as either ‘inheritance’ or ‘gift’ may oversimplify the complexity of how people conceptualised their rights in lands. This is acknowledged in a rare example of 1191x1206 in which the citizens of York notified Geoffrey, archbishop, that the advowson of the church of All Saints in the Marsh belonged to Ralph Nuvel and his ancestors by hereditary right and by the gift of his